Citation Nr: 1754588 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-24 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to asbestos. 2. Entitlement to service connection for a pulmonary disability, to include asbestosis and mesothelioma, claimed as due to exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and February 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran was scheduled for a videoconference hearing in May 2015. In March 2015, he withdrew his request. In July 2015, the Board remanded this matter for further evidentiary development. The Board finds there has been substantial compliance with its remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance") FINDINGS OF FACT 1. Diabetes mellitus, type II, did not manifest during service, within the one-year presumptive period or for many years thereafter, and was unrelated to service, to include as due to exposure to asbestos. 2. A pulmonary disability, to include asbestosis and mesothelioma, is not demonstrated by the evidence of record. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2017). 2. The criteria for service connection for a pulmonary disability, to include asbestosis and mesothelioma, are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection for any particular disability on a direct incurrence basis, there must be competent evidence of a current disability; in-service occurrence or aggravation of a disease or injury; and a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In Brammer v. Derwinski, the Court held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005); see also McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The aforementioned manual notes that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis (asbestosis) being the most common disease. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea; end-respiratory rales over the lower lobes; compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and core pulmonale that can be demonstrated by instrumental methods. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not military records demonstrate evidence of asbestos exposure in service, and to ensure that development is accomplished to ascertain whether or not there is pre-service or post service occupational or other asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9.f. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases. As always, the reasonable doubt doctrine is for consideration in such claims. In McGinty, the Court also indicated that, while the veteran, as a lay person, is not competent to testify as to the cause of his disease, he is competent to testify as to the facts of his asbestos exposure. See McGinty, 4 Vet. App. at 432 (1993). Diabetes Mellitus The Veteran claims that he has diabetes mellitus that is related to service. Specifically, he asserts that his diabetes mellitus is related to in-service asbestos exposure. It is noted asbestos exposure has been conceded by the RO. Service treatment records contain no complaints of or treatment for diabetes mellitus. On August 1969 separation examination, the Veteran's endocrine system was evaluated as normal and urine testing was negative for albumin and sugar. The Board acknowledges that the Veteran has asserted that he was diagnosed with diabetes mellitus in 1969 during VA treatment; however, in August 2010, the RO sought to obtain these treatment records and a negative response was received in February 2011. Post-service records document treatment for diabetes mellitus. An April 2006 VA treatment record shows that the Veteran was scheduled for a fasting glucose to be evaluated for possible diabetes. An April 2009 VA treatment for an optometry consult, it was noted that the Veteran was newly diagnosed with diabetes and needed an eye exam. An April 2010 VA treatment record indicates a history and diagnosis of diabetes mellitus in 2009. An August 2012 VA treatment record notes the duration of the Veteran's diabetes as being approximately three years, following an April 2009 diagnosis. The information was obtained by chart documentation. A June 2015 VA treatment record reflects that the Veteran's current diabetes therapy included a particular diet and oral agent. An August 2015 VA treatment record shows that the Veteran presented to the podiatry clinic to have his nails trimmed and feet inspected for possible problems arising from his diabetes. Pursuant to the July 2015 Board remand, the Veteran was afforded a March 2016 VA examination. The VA examiner provided a negative nexus opinion with respect to the Veteran's diabetes mellitus and military service. Based on review of the claims file, the examiner opined that the Veteran's diabetes mellitus was not incurred in or related to his service because service treatment records were silent as to any glucose intolerance or diabetes mellitus. The VA examiner also indicated that VA treatment records reflect that the Veteran became diabetic in 2009. As for whether the Veteran's diabetes mellitus was related to his in service exposure to asbestos, the examiner also provided a negative nexus opinion. The examiner reasoned that exposure to asbestos has never been related to glucose intolerance or diabetes. The examiner continued to state that there is no medical evidence that asbestos directly affects glucose or insulin levels or sensitivity. Lastly, she indicated that there is no medical evidence that asbestos exposure affects pancreatic endocrine function. The Board finds the March 2016 VA medical opinion indicating a lack of relationship between the Veteran's diabetes mellitus and in-service asbestos exposure is of significant probative value. Because the examiner explained the reasons for her conclusion based on an accurate characterization of the evidence of record, the opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a nexus. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran's statements as to the etiology of his diabetes mellitus are statements as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. The Board finds that the specific, reasoned opinion of the March 2016 VA examiner is of much greater probative weight than his more general lay assertions. To the extent that a theory of entitlement to service connection on a direct basis has been raised with regard to diabetes mellitus, the evidence weighs against the claim. The normal separation examination report, lack of diabetes mellitus until 2009, and the only medical opinion of record, a negative March 2016 VA nexus opinion, all weigh against this theory. Although the March 2016 VA examiner referenced the lack of symptoms suggestive of diabetes mellitus in service, reading the opinion as a whole and in the context of the evidence of record, this was not the sole basis for the opinion. Cf. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Rather, the examiner found that the combination of the lack of complaints or treatment in service, along with the other medical evidence indicating a later onset of diabetes mellitus, reflected a lack of relationship between the disability and service. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate). Finally, the above evidence reflects that diabetes mellitus did not manifest and was not noted in service such that 38 C.F.R. § 3.303(b) would be for application, and diabetes mellitus did not manifest within the one year presumptive such that service connection would be warranted pursuant to 38 U.S.C.A. § 1112(a) and 38 C.F.R. §§ 3.307 (a) and 3.309(a). Diabetes mellitus was first noted in 2009 VA treatment records, approximately 40 years after service and there is no evidence or argument that there were symptoms of diabetes that reflected that the disease manifested to a compensable degree in service or within the one year presumptive period. Cf. 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for diabetes mellitus. Accordingly, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Pulmonary Disability The Veteran seeks service connection for a pulmonary disability, to include as due to asbestos exposure. As noted in the decision above, asbestos exposure has been conceded by the RO. Service treatment records are silent as to any complaints of or treatment for a pulmonary disability, to include asbestosis or mesothelioma. The Veteran was afforded a VA examination in April 2010, which revealed overall interpretation of pulmonary function studies was entirely within normal limits. The Veteran later underwent a VA respiratory examination in April 2013. Upon review of the Veteran's claims file, the examiner indicated that there were no episodes of significant pulmonary illness in his active-duty service records, and there had never been throughout his additional comorbidities any evidence of mesothelioma. The examiner noted that a June 2012 spirometry was normal and showed no obstruction or evidence of restriction. The examiner found that the Veteran's intermittent cough was unchanged without associated respiratory signs or symptoms. His cardiopulmonary examination remained within normal limits. The examiner referenced VA treatment records of chest imaging, including CT examination, showing extensive evidence of pleural plaques bilaterally with many which were calcified; however, the examiner stated that there was no evidence of pulmonary parenchymal fibrosis, complicating tumors, or infiltrates. The Veteran's pulmonary function studies remained within normal limits with FEV1/FVC ratio of 82%, FVC 108% of predicted, FEV1 111% of predicted, and gas transfer by DLCO 97% of predicted. Although the examiner found that the Veteran's asbestos exposure was confirmed on the basis of established occupational exposure on active duty and extensive calcified pleural plaques and chest imaging examination, the examiner concluded that there was no evidence of mesothelioma or pulmonary asbestosis. Significantly, the medical records dated following service disclose no evidence pertaining to a pulmonary disability. Although the Veteran has presented his lay assertions alleging that the he now has a pulmonary disability, as a residual of his in-service exposure to asbestos, there is simply no competent evidence of record which supports his assertions. While lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the matter of whether the Veteran has the disability claimed and whether such disability is due to service falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether he has a pulmonary disability due to service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that he has a current diagnosis of a pulmonary disability which is due to service. Consequently, in the absence of a presently existing diagnosis of a pulmonary disability (and, if so, of a nexus between that disorder and service), there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. Hence, service connection for a pulmonary disability is not warranted because the Veteran has not satisfied the first requirement of service connection, i.e., a current diagnosis of that disorder. See 38 C.F.R. § 3.303; see Gilpin and Brammer, both supra. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of evidence is against a finding of service connection for a pulmonary disability, that doctrine does not apply. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App 49 (1990). The appeal is denied. ORDER Service connection for diabetes mellitus, type II, to include as due to exposure to asbestos is denied. Service connection for a pulmonary disability, to include asbestosis and mesothelioma, claimed as due to exposure to asbestos is denied. ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs